With the beginning of confirmation hearings for President Trump’s Cabinet appointments and eventually his Supreme Court nominee, I’m sure you’ve heard on television, radio, or read in a newspaper something about the “nuclear option.” You may recall it being discussed before, about 2013, after there was strong opposition given to some of President Obama’s appointments. The nuclear option is a ruling in “parliamentary procedure” that removes the typical threshold of Senators necessary to overcome a filibuster on a confirmation; instead of requiring 60 Senators for legislation, or 2/3rds of Senators for amending Senate rules, all it takes is a simple majority vote (50%+1). This translates into the ability of the Senate majority to ignore any serious effort by the minority to oppose appointments and force candidates and laws through the Senate. When the nuclear option was finally put into power in 2013 under Senate Majority Leader Harry Reid (D-NV), it had long been a known issue in the Senate.
For instance, in 1917, 100 years ago, the nuclear option’s existence caused the Senate to reform their filibuster rules. At the time, Senator Thomas J. Walsh (D-MT) noted that while Senate required a 2/3rds majority to approve rule changes, the Constitution stated that “each House could determine its’ rules of proceedings” which meant either House could decide all decisions be resolved by a simple majority. His conclusion caused a shakeup in the understanding of procedures and new rules of cloture (cloture is the procedure to end a debate and take a vote) were adopted to fix the hole Walsh had noted in the rules of operations. In 1957, Vice President Richard Nixon wrote an opinion on the proceedings of the Senate that the US Constitution still granted the presiding officer the authority to override rules. In 1975, acting to make cloture more achievable, the new Democrat majority made the necessary amount of Senators 60 and “having been sworn in” rather than “present and voting”.
But after almost a hundred years of trying to avoid such a blatant crackdown on opposition in Congress, Senate Democrats ended the tense, but respected tradition. After the filibusters of Rand Paul and Ted Cruz occurred on intelligence appointments, Senator Harry Reid felt it was necessary to ensure that Republicans who protested the appointments be incapable of stalling their path to carrying out their duties.
Now in 2017, with Republicans in charge of the Senate again, and with a President amenable to their will in the White House, the nuclear option presents itself as a possibility again. When Senator Reid eliminated the ability of the filibuster to stand in as a protest of truly awful or corrupt appointments, I protested it and considered it a violation of the peace in Congress. Senator Harry Reid had turned to his associates and said “Peace or War” and when Republicans protested, he said “war.”
With the nuclear option being the new tradition, Senator Mitch McConnell has stated that Gorsuch will pass, but how he passes will depend on what Senate Democrats do. Facing the sword they once used on Republicans, Democrats are presented with McConnell saying “I would say that is up to our Democrat friends.” With the offer of “peace or war” on the table to Democrats, if Democrats decide to protest at the threat like Republicans did 4 years ago, here is what will happen.
Mitch McConnell will enact the Nuclear Option on Supreme Court nominees, ensuring that from this point forward the Justices that make it to the Supreme Court will not be non-partisan options favored by all, but be politicized warriors for whichever party holds the Senate. As a Republican and Conservative, this situation worries me gravely. For however we may talk about the President’s executive orders treading against the intent and tradition of the Constitution, the act of turning our last legislative institution that forces unity to become a battleground of politicization is a breaking of tradition I cannot stand.
The nuclear option is an admission that the two parties are irreconcilable. It is an agreement by the two parties to refuse to find common ground, to reject subduing of their hearts and ideologies for the sake of the people. And with Supreme Court nominees no longer needing 60 votes, the Court will go from a “4 Liberals/3 Conservatives/1 Moderate” makeup as it is now to eventually a “5/4” or “6/3” split that always favors one party or the other’s ideologies. Perhaps there will be appointments of good people, persons like Gorsuch who stand not for their personal values, but the Constitution’s. Institutionalizing the end of peace, the Era of the Nuclear Option will not see many such persons seated on the Supreme Court.